This week in Supreme Court history: A win for ‘stop and frisk’

In 1963, veteran police officer Martin McFadden noticed three men behaving suspiciously outside of a jewelry store in Cleveland, Ohio. The men were pacing back and forth, repeatedly stopping to look inside the same store. After observing this behavior, McFadden decided to approach the three men. He identified that he was a police officer and asked for their names. After the men “mumbled something” in response, McFadden performed an exterior search (a pat down) of the men to ensure his safety. During the pat down, McFadden felt a weapon through the clothing of John Terry, which he then removed. He performed a pat down of the other two men and found that Richard Chilton was also carrying. Both men were charged with the illegal possession of a concealed firearm.

During the subsequent trial, attorneys for Terry and Chilton argued that the weapons obtained by Officer McFadden were done so illegally via an unreasonable search and seizure in violation of the Fourth Amendment. They further argued that the weapons were inadmissible as evidence in the case due to the exclusionary rule. The court rejected the argument, and the pistols were used as evidence in support of conviction. Terry’s defense team appealed to the Supreme Court of Ohio, but to no avail.

Terry v. Ohio was controversial and substantial for a number of reasons. The state argued that McFadden had reasonable suspicion that a crime was about to take place, and therefore was also reasonable to think that the defendants could be armed and dangerous. But until McFadden felt a gun through Terry’s clothing, the only evidence of a crime being committed was said suspicion. To what extent does the Fourth Amendment protect citizens on the street? Is there a constitutionally significant difference between a “stop” and an “arrest,” between a “frisk” and a “search”? In a search or seizure, when is “reasonable suspicion” enough, and when is “probable cause” required? In this particular case, were the discovered weapons inadmissible in court?

In 1967, the Court heard oral arguments, and on June 10, 1968, an 8-1 majority ruled in favor of the state of Ohio. The opinion was penned by Chief Justice Earl Warren, with concurring opinions from both Justices John Marshall Harlan and Byron White.

Early on, Warren is at pains to be fair and even-handed. He presents the best arguments on both sides: the need for “an escalating set of flexible responses” for police in dangerous situations, the need for a “specific justification for any intrusion upon protected personal security” of the citizen. He even gestures to modern debates over stop and frisk, calling it “a serious intrusion upon the sanctity of the person, which may inflict great indignity and arouse strong resentment.” This procedure, he writes, “is not to be undertaken lightly.”

The Court then makes its first key move: “Stops” and “frisks” are rightly considered “seizures” and “searches,” respectively, under the Fourth Amendment. To believe otherwise, writes Warren, is “to isolate from constitutional scrutiny the initial stages of the contact between the policemen and the citizen.”

Terry’s victory is short-lived, however, because the Court then makes another key move: McFadden’s stop and frisk – “necessarily swift action predicated upon the on-the-spot observations of the officer on the beat” – does not, and as a practical matter cannot, require a warrant. Instead, his behavior is tested by the Fourth Amendment’s general prohibition against “unreasonable” searches and seizures.

In this analysis, the Court is clear: It was reasonable for McFadden to believe that Terry and his companions were armed and thus a threat to McFadden’s safety. (Indeed, any “reasonably prudent man” would reach the same conclusion.) When this justification is balanced against the scope of the intrusion – in this case, the patting down of outer clothing – the search is deemed reasonable, as it was “minimally necessary” for discovering weapons and stopped short of a general search. Ultimately, then, the weapons are admissible in court.

The lone dissenter, Justice William O. Douglas, laments the new – lower – standard for warrantless arrests. Instead of “probable cause,” the long-endorsed standard for searches and seizures, only “reasonable suspicion” is now required. Douglas concludes his brief dissent with ominous words:

To give the police greater power than a magistrate is to take a long step down the totalitarian path. Perhaps such a step is desirable to cope with modern forms of lawlessness. But if it is taken, it should be the deliberate choice of the people through a constitutional amendment. …

There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today.

Yet if the individual is no longer to be sovereign, if the police can pick him up whenever they do not like the cut of his jib, if they can "seize" and "search" him in their discretion, we enter a new regime. The decision to enter it should be made only after a full debate by the people of this country.

Terry undoubtedly expanded the ability of police to investigate suspicious activity. Whether that expansion is a bulwark against crime or a threat to liberty depends on your perspective. “Terry stops” continue apace, yet in 2013, a federal judge ruled against the New York City Police Department’s stop-and-frisk policy. The debate rages on.